Clarke v Body Corporate for Second Avenue [2012] QCATA 27

CITATION: Clarke and Anor v Body Corporate for Second Avenue CTS 5755 [2012] QCATA 27 PARTIES: Mr Robert Clarke Mrs Debra Clarke (Applicants/Appellants) v Body Corporate for Second Avenue CTS 5755 (Respondent) APPLICATION NUMBER: APL404-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 21 February 2012 DELIVERED AT: Brisbane ORDERS MADE: Application for a stay refused. CATCHWORDS: Body Corporate and Community Management – where applicant applied for a stay of the Adjudicator’s decision – stay refused – no arguable case established Queensland Civil and Administrative Tribunal Act 2009, s 145(2) Body Corporate and Community Management Act 1997, ss 289(2), 378, 385 Pearce v Body Corporate for Riparian Plaza Apartments CTS 34665 [2012] QCATA Yates v Williams and Body Corporate (Magic Mountain Apartments Two) [2012] QCATA APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] On 17 January 2012 the Tribunal refused to stay a decision of an Adjudicator made on 15 September 2011 in which he ordered that the Body Corporate must deal with the Mr Foster’s adjustment order reversal motion under section 385 of the Body Corporate and Community Management Act 1997. The basis of the decision was that he found that the Body Corporate did not consent to the previous lot entitlement adjustment order and therefore it can now be reversed. [2] The applicants contend that as the Body Corporate did not oppose the adjustment order made by the former Commercial and Consumer Tribunal on 16 October 2009, that order falls within the exception to the meaning of “adjustment order” in section 378 of the Body Corporate and Community Management Act 1997. [3] The evidence is uncontroversial in that the Committee, faced with the original motion to adjust the lot entitlements, chose not to oppose that application. In those circumstances, the Adjudicator found that there was no agreement as to the adjustment of lot entitlements nor was there any settlement between the then applicant and the Body Corporate about lot entitlement adjustment. [4] In the application for leave to appeal or appeal from the Adjudicator’s decision the Clarkes contend that the circumstances of the CCT order fall within the exception to section 378. Pending the hearing of the Appeal, the Clarkes applied for a stay1 of the Adjudicator’s decision. Subsequent to the decision of the Tribunal to refuse the stay the Clarkes, as they are entitled to do, sought reasons for that decision. [5] The granting of the stay is discretionary. The usual principles that apply to the granting of a stay are that the applicant must establish that there is an arguable case and that the balance of convenience favours the stay. [6] In respect of whether there is an arguable case, the facts put before the learned Adjudicator clearly establish that the order made by the CCT, although not opposed, was not consented to nor was there any agreement by the Body Corporate. In fact, the order issued by the Tribunal and referred to in paragraph 13 of the submissions of the principal application commence with the words “upon consideration of an application filed on 24 August 2009, correspondence received on behalf of the respondent dated 11 September 2009 and a defence filed on 14 September 2009 … the Commercial and Consumer Tribunal makes the following orders”. [7] The order itself suggests the CCT brought an independent mind to bear as to whether the order should be made in the circumstances. It was not made 1 QCAT Act, s 145(2). -- 2 of 3 -- 3 “by consent”. To succeed in the appeal the applicants must establish an error of law on the part of the adjudicator.2 [8] The question to determine is whether the applicants have established that there is an arguable case on a question of law in the application for leave to appeal. On these facts it is difficult to see how the order of the CCT could fall within the exception contained in section 378(b). This view has since been confirmed in Pearce v Body Corporate for Riparian Plaza Apartments CTS 34665.3 [9] As for the balance of convenience, even if I were persuaded there was an arguable case, should the applicants succeed on the appeal that decision would not be rendered nugatory if the order appealed from was not stayed in the interim. The Body Corporate would simply have to revert to the existing contribution schedule and the process to do so in the face of an order from the Tribunal ought to be a formality. [10] Therefore, I am not satisfied that the circumstances of this case are so special to warrant a stay. 2 BCCM Act, section 289(2). 3 [2012] QCATA; also see Yates v Williams and Body Corporate (Magic Mountain Apartments Two) [2012] QCATA. -- 3 of 3 --